Romero v. City of Middletown

479 F.Supp.3d 660

Matthew B. ROMERO, Plaintiff,

v.CITY OF MIDDLETOWN, et al., Defendants.

Case No. 1:19-cv-307

United States District Court, S.D. Ohio, Western Division.

Signed August 18, 2020

John Randolph Folkerth, Jr., Weprin Folkerth & Routh LLC, Dayton, OH, for Plaintiff.

Dawn M. Frick, Jeffrey Charles Turner, Michael David Rice, Surdyk, Dowd & Turner Co., L.P.A., Dayton, OH, for Defendants.

OPINION AND ORDER

DOUGLAS R. COLE, UNITED STATES DISTRICT JUDGE

Plaintiff Matthew Romero alleges the City of Middletown, Douglas Adkins, Scott Belcher, Mark Clemons, and Scott Tadych (collectively "Defendants") wrongfully fired him in retaliation for him raising concerns about workplace safety and water treatment quality at the Middletown water treatment plant. The matter is currently before the Court on Defendants’ Motion for Judgment on the Pleadings. (Doc. 10). For the following reasons, the Court GRANTS in part and DENIES in part Defendants’ Motion. (Doc. 10).

BACKGROUND¹

Matthew Romero worked for the City of Middletown in its Water Treatment Division for a total of ten years. (Compl., Doc. 1-3, ¶¶ 1, 8, #8, 9). He started as a plant operator, then moved up the ranks to Process Control Supervisor. (Id. at ¶ 8, #9). Pursuant to Ohio's Public Employees Retirement System, he retired in March 2014. (Id. ). But by June 2014, Romero was back working at Middletown's Water Treatment Division part-time as an Assistant Plant Lab Analyst ("Assistant Lab Analyst"). (Id. at ¶ 9). Romero alleges his job duties included "performing chemical and bacteriological analysis of municipal drinking water samples; quality control procedures; collecting samples; operating and maintaining sampling, analytical procedures, and equipment; customer service; [ ] water quality concerns; and related work as required by [his] supervisor." (Id. ). Performing these duties required Romero to pass through the water treatment plant. (Id. at ¶ 10). While walking through the plant, Romero allegedly discovered multiple incidents of mismanagement, and unsafe, unlawful, and improper operations and conditions in the water treatment plant, as further detailed below. (Id. ).

A. Romero Raised A Series Of Concerns About Issues He Noticed Around The Water Treatment Plant.

CO₂ Tank. The first issue Romero observed involved the CO₂ tank at the plant in the spring of 2015. (See id. at ¶¶ 10–11, #9–10). One day, Romero noticed that a warning light on the liquid CO₂ tank was activated. (Id. at ¶ 10, #10). After speaking with the plant operator, Romero examined the tank and realized the pressure gauge was broken. (Id. at ¶ 11). Romero checked the log records and learned that the plant operators had been inaccurately completing the internal control charts because they were recording the broken gauge's reading. (Id. ). As a result, there was a critically low level of liquid CO₂, which could potentially result in the forty-ton tank rupturing, risking serious injury and death to anyone in that area of the workplace. (Id. ). Even though it was not within his job duties, once Romero discovered the issue, he immediately shut down the tank and discussed his concerns with Scott Belcher, Middletown's Water Treatment Manager; Mark Clemons, Middletown's Process Control Supervisor; and Scott Tadych, Middletown's Public Works Director. (Id. ; see also id. at ¶¶ 3–6, #8–9).

That was apparently just the beginning. By early 2016, Romero was observing and reporting unsafe and unlawful conditions around the plant at least weekly. (Id. at ¶ 12, #10). These included the following:

Lime Stock. In May 2016, Romero allegedly learned some troubling information about the city's lime supply. A plant operator sought out Romero to speak with him about the issue because of Romero's knowledge and experience as a former Process Control Supervisor. (Id. ). That plant operator told him that the plant was low on lime, and that Middletown could potentially deplete its supply before the next delivery. (Id. ). Romero alleges that failure to maintain an adequate supply of lime would violate Middletown's Ohio Environmental Protection Agency ("OEPA") permit to operate a lime softening treatment plant (id. ), but does not allege that these low lime levels at the plant created any risk to water safety or public health. In any event, Romero took action and ordered additional lime. (Id. ). He subsequently emailed Belcher and Clemons to inform them of the situation and alert them that he had placed an order for an emergency delivery. (Id. ). Clemons told Romero that he had already ordered extra lime deliveries. (Id. at ¶ 13, #11). But Romero knew that was not true—Clemons later admitted as much. (Id. ). Nevertheless, Clemons still became angry with Romero and told him that running out of lime "wasn't a big deal." (Id. ). Romero separately emailed Belcher to tell him that "allowing the lime supply to get so low was simple negligence." (Id. ).

Alkalinity Levels and Operator Training. A few weeks later, Romero observed fluctuations in certain tests that indicated excessive pH and alkalinity levels in the water. (Id. at ¶ 14). This concerned Romero and, after speaking with the plant operators, he realized that they were uninformed about important aspects of water quality, such as pH levels, water hardness, and alkalinity, as well as appropriate treatment measures that needed to be taken to address these issues. (Id. ). Without this knowledge, the plant would be wasting supplies and resources used to control water quality and placing the public health at risk. (Id. ). In addition to lacking this basic knowledge, Romero also noticed a general lack of training for the plant operators. (See id. at ¶ 15, #11–12). For example, Romero noticed that plant operators were not taking the elementary precautions necessary, such as routinely cleaning the storage tanks to prevent the formation of disinfectant by-products. (Id. ). These disinfectant by-products include haloacetic acids, which have been linked to certain cancers. (Id. at #12). Romero informed Belcher and Clemmons, who "did not seem surprised" by Romero's report. (Id. ). They told Romero that plant operations would improve going forward. (Id. ).

Federally Mandated Test Results. In the summer of 2016, Middletown conducted a routine lead and copper water survey at various residences within the city. (Id. at ¶ 16, #12). Around August 3, 2016, Romero received a call from a Middletown resident inquiring about the resident's survey results. (Id. at ¶ 22, #14). The call made Romero suspicious that the resident had not been notified of her survey results. (Id. ). He realized that Middletown had not delivered the federally mandated notifications, and, by the time Romero received the resident's call, Middletown had already missed the deadline to send them. (Id. ). Under 40 C.F.R. § 141.85, Middletown had thirty days from receiving the lead and copper survey results to notify the residents whose water had been tested about the results. (Id. ). Romero reported this violation to Clemons in an email. (Id. ).

At this point, Romero was aware that Belcher and Clemons were becoming increasingly hostile towards his reports of the plant's operating conditions. (Id. at ¶ 19, #13). Romero's work hours per week were arbitrarily reduced without explanation. (Id. ). Romero was told to limit his activities to his job responsibilities—meaning he was not permitted to monitor operations, check the lime level, or perform rounds at the plant. (Id. ). He also noticed his colleagues’ attitudes had changed. (Id. ). The plant operators had become reluctant to engage him in conversation and ask him questions about plant operations. (Id. ). But this did not deter him from continuing to report his concerns.

Incorrectly Preparing OEPA Reports. Romero assisted Middletown in conducting the lead and copper water survey by preparing sample collections and answering phone calls from residents inquiring about the survey results. (Id. at ¶ 16, #12). Romero later learned that the test results for certain samples found that the pH levels fluctuated outside the advised range provided for in the Secondary Drinking Water Standards issued by the EPA, meaning water quality was at an increased risk. (Id. ).

Those increased risks could lead to serious concerns with water quality. (See id. at ¶ 18, #12–13). For example, allowing high pH levels in the water supply encourages the creation of trihalomethanes, which have been linked to adverse reproductive outcomes and serious cancers. (Id. at #13). High pH levels can also reduce the effectiveness of chlorine, which is a disinfectant used to control biological contamination. (Id. ). Plus, allowing high alkalinity levels could impair the effectiveness of anti-corrosive agents used to prevent the release of lead and arsenic into drinking water. (Id. ).

The OEPA requires Middletown to produce what Romero calls "4 Log reports," which track disinfection contact time for the water processed through the treatment plant. (Id. at ¶¶ 17, 20, #12–13). Romero spoke with Belcher and Clemons about what impact these fluctuating pH results and low chlorine residuals would have on Middletown's reports. (Id. at ¶ 17, #12). Belcher and Clemons told Romero that the pH results would not affect the data and calculations recorded in the 4 Log reports. (Id. ). But Romero knew this was false; pH results were critical to the water quality analysis recorded in those reports. (Id. ). Given this response, Romero grew concerned that Middletown's procedure for gathering data on the effectiveness of water treatment disinfectant did not comply with OEPA guidelines for collecting data recorded in the 4 Log reports. (Id. ).

As a result, Romero decided to discuss the matter directly with the OEPA. (Id. at ¶ 20, #13). He emailed the OEPA Drinking Water Division requesting guidance with calculating the disinfectant contact time factor recorded on the 4 Log reports. (Id. ). He ended up speaking with Jeff Davidson from the...